Leshore v. Nassau County Sheriff's Department of Correctional Facility

Filing 18

ORDER granting 13 Motion to Dismiss. SO ORDERED that respondent's motion to dismiss is granted, and the petition for a writ of habeas corpus is dismissed in its entirety without prejudice.The Clerk of Court is directed to close this case and to serve copies of this order upon all parties, including mailing a copy to the prose petitioner at his last known address. A certificate of appealability will not issue, as petitioner has not made a substantial showing of a denial of a constitutional right. CM to pro se petitioner. Ordered by Judge Sandra J. Feuerstein on 8/7/2012. (Florio, Lisa)

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D!F
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

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VERNON LESHORE,

Petitioner,

ORDER
I I -CV -2587 (SJF)

-againstNASSAU COUNTY SHERIFF'S DEPARTMENT
OF CORRECTIONAL FACILITY,
Respondent.

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FILED
IN CLERK'S OFFICE
U S DISTRICT COURT E 0 N Y

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AUG 0 7 2012

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LONG ISLAND OFFICE

FEUERSTEIN, United States District Judge:

On May 25, 20 I I, incarcerated pro se petitioner Vernon Leshore ("petitioner" or
"Leshore") filed the instant petition seeking a writ of habeas corpus pursuant to 28 U.S.C. §
2254. [Docket Entry No. I ]. 1 Respondent subsequently filed a motion to dismiss, which
petitioner has not opposed.' [Docket Entry No. 13]. For the following reasons, the motion is
granted, and the petition is dismissed without prejudice.

I.

Factual and Procedural Background
In 2010, petitioner was indicted on charges of gang assault in the first degree, in violation

of Penal Law§ 120.07, gang assault in the second degree, in violation of Penal Law§ 120.06,
assault in the first degree, in violation of Penal Law§ 120.10[1], two (2) counts of assault in the
second degree, in violation of Penal Law§§ 120.05(1] and 120.05[2], assault in the third degree,

1

The petition was amended on August 5, 201 I. [Docket Entry No. I 1].

2

Although petitioner moved for, and was granted, and extension of time to file his
opposition, no opposition was filed.
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in violation of Penal Law § 120.00(1], two (2) counts of criminal possession of a weapon in the
third degree, in violation of Penal Law § 265.02[1], and two (2) counts of criminal possession of
a weapon in the fourth degree, in violation of Penal Law§ 265.01[2]. Affidavit ofJoanna
Hershey [Docket Entry No. 13] at '1[ 4. According to respondent, the indictment arose out of
petitioner's participation in an assault in Long Beach, New York. Id. at '1[ 3.
Petitioner entered a plea of guilty to one (I) count of attempted assault in the second
degree, in violation of Penal Law§§ 110 and 120.05, and, on June 6, 2011, was sentenced to a
term of two (2) to four (4) years' imprisonment. Id. at '1[ 6. That same day, petitioner filed a
notice of appeal in Nassau County Court. Id. at '1[ 7. 3 Petitioner also filed a series of motions in
the Nassau County Court pursuant to C.P.L. Article 440, seeking an order vacating his conviction
and sentence. Id. at '1[ 8.
Petitioner filed the instant petition on May 25,2011, after his guilty plea, but before his
sentencing. In the amended petition, he appears to argue, inter alia, that he was arrested without
probable cause and that his guilty plea was not voluntary. See Docket Entry No. II. Respondent
now moves to dismiss pursuant to 28 U.S.C. § 2254(b)(I)(A) and (c), arguing that petitioner's
claims are unexhausted.

II.

Analysis
"An application for a writ of habeas corpus on behalf of a person in custody pursuant to

the judgment of a State court shall not be granted unless it appears that the applicant has

To the best of this Court's knowledge, the appeal remains pending before the Appellate
Division, Second Department.
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exhausted the remedies available in the courts of the State." 28 U.S.C. § 2254(b)(l)(A); see also
Carvajal v. Artus, 633 F.3d 95, 104 (2d Cir. 2011) ("[B]efore a federal court can consider a
habeas application brought by a state prisoner, the habeas applicant must exhaust all of his state
remedies."). "Exhaustion of state remedies requires that a petitioner fairly present federal claims
to the state courts in order to give the state the opportunity to pass upon and correct alleged
violations of its prisoners' federal rights." Cornell v. Kirkpatrick, 665 F.3d 369,375 (2d Cir.
2011) (quoting Carvajal, 633 F.3d at 104). In order to exhaust his state remedies, petitioner must
"'fairly present' the federal claim 'in each appropriate state court (including a state supreme court
with powers of discretionary review)."' Richardson v. Superintendent of Mid-Orange Carr.
Facility, 621 F.3d 196,201 (2d Cir. 2010) (quoting Baldwin v. Reese, 541 U.S. 27, 29, 124 S.Ct.
1347, 158 L.Ed.2d 64 (2004)). This means that the "petitioner must 'present[] his [or her] claim
to the highest court of the state."' Galamez v. Keane, 394 F.3d 68, 73 (2d Cir. 2005) (quoting
Morgan v. Bennett, 204 F.3d 360, 369 (2d Cir. 2000). "The exhaustion requirement is animated
by 'notions of comity between the federal and [s]tate judicial systems."' Carvajal, 633 F .3d at
104 (quoting Strogov v. Attorney Gen. ofN.Y., 191 F.3d 188, 191 (2d Cir. 1999)).
As of the time the petition was filed, Leshore clearly had not exhausted his state
remedies: his appeal was still pending before the Second Department and his motions to vacate
were pending before the County Court. Furthermore, the Court has not located any information
indicating that plaintiff's claims have been properly exhausted since that time. Under these
circumstances, the proper course of action is to dismiss the petition without prejudice. See
generally Carpenter v. Reynolds, 212 F.Supp.2d 94, 98 (E.D.N.Y. 2002).

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Ill.

Conclusion
For the foregoing reasons, respondent's motion to dismiss is granted, and the petition for

a writ of habeas corpus is dismissed in its entirety without prejudice. The Clerk of Court is
directed to close this case and to serve copies of this order upon all parties, including mailing a
copy to the prose petitioner at his last known address. See Fed. R. Civ. P. 77.
A certificate of appealability will not issue, as petitioner has not made a substantial
showing of a denial of a constitutional right. Miller-El v. Cockrell, 537 U.S. 322, 123 S.Ct.
1029, 154 L.Ed.2d 931 (2003).

SO ORDERED.

s/ Sandra J. Feuerstein
Sandra J. Feuerstein
United States District Judge
Dated:

August 7, 2012
Central Islip, New York

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